## Facts

- Ivan and Lyuba Silchuk invited Alex and Nataliya Andrushchenko and their three-year-old son, D.A., to the Silchuks’ newly built home for lunch.
- Early in the visit, D.A. turned on faucets in a main-floor bathroom and flooded it.
- Lyuba Silchuk warned Nataliya Andrushchenko that Nataliya would be responsible for any further damage caused by D.A.
- D.A. later went upstairs with the Silchuk children to play.
- Lyuba went upstairs, noticed D.A. was not playing with the other children and was instead by himself in another area, then closed the master bedroom door where a baby was sleeping and returned downstairs.
- Lyuba did not bring D.A. downstairs or tell D.A.’s parents that he was upstairs alone.
- Shortly afterward, the adults heard D.A. scream and found him in the whirlpool bathtub in the master bathroom with severe burns.
- The evidence indicated D.A. opened the baby’s bedroom door, entered the master bathroom, turned on hot water, placed toys and other objects in the tub, and then either climbed or slipped into the tub.
- The water in the tub was approximately 160°F.
- D.A. required extensive medical treatment, including plastic surgery.
- The Silchuks’ water heaters had been installed a few months earlier during construction; Metzger Construction, Inc. was the general contractor and hired M & M Plumbing-HVAC, L.L.C. to install the water heaters.
- The Andrushchenkos sued the Silchuks for negligent supervision and premises negligence, alleging D.A. was an invitee and that Lyuba undertook a duty to protect him.
- The Andrushchenkos also sued Metzger and M & M, alleging negligent installation and setup of the water heaters (including setting water temperature too high), relying on local code and manufacturer materials suggesting 120°F, and alleging a failure to warn of scalding risks.
- The circuit court granted summary judgment to all defendants, and the Andrushchenkos appealed.

## Issues

1. Whether the Silchuks, as homeowners hosting a child social guest/invitee, owed and breached a duty of reasonable care to protect D.A. from the risk of scalding in the master bathroom under these circumstances.
2. Whether Lyuba Silchuk voluntarily assumed a duty to supervise or protect D.A. by checking upstairs and then returning downstairs, such that liability could be based on a negligent-undertaking theory.
3. Whether Metzger and/or M & M owed D.A. a tort duty, based on building code, manufacturer materials, or common-law negligence, to set the water-heater thermostats at 120°F (or otherwise prevent 160°F hot water at fixtures) and/or to warn the homeowners.

## Decision

- The Supreme Court of South Dakota affirmed the grant of summary judgment for all defendants.
- The court held that, on this record, the Silchuks were not liable for D.A.’s injuries because the plaintiffs did not show an actionable duty and breach tied to a reasonably foreseeable risk under the specific sequence of events.
- The court rejected the claim that Lyuba’s brief check upstairs and closing a door amounted to an undertaking of ongoing supervision or protection of D.A.
- The court held Metzger and M & M were not subject to the asserted tort duty to ensure the home’s hot-water temperature was set at 120°F for the protection of third parties like D.A., and the cited code/manual materials did not supply the duty theory the plaintiffs advanced.
- Because the plaintiffs could not establish a prima facie negligence case against any defendant as a matter of law, the claims did not proceed to trial.

## Legal Principles

- Whether a defendant owes a duty of care is a question of law for the court; duty analysis turns on whether the type of harm was reasonably foreseeable in light of the circumstances.
- A homeowner’s general duty of reasonable care to invitees, including children, does not automatically require additional supervision or safety measures absent a showing that the injury-producing event was reasonably foreseeable on the facts presented.
- A negligent-undertaking (gratuitous-duty) claim requires an actual undertaking of responsibility for another’s protection and a legally recognized basis for liability (such as increased risk or reliance); a brief, informal check on children at a social gathering may be insufficient to create an ongoing duty.
- Building codes and manufacturer materials may inform a standard of care in some settings, but they do not automatically create a private tort duty or negligence per se in favor of a particular plaintiff.
- Contractors’ responsibility for conditions after completion is limited where the owner has control over ongoing settings and maintenance; absent a recognized duty running to the injured third party, negligence claims fail at the duty stage.
- Summary judgment is proper when, even viewing the evidence in the light most favorable to the nonmoving party, the law does not recognize the duty or the record cannot support breach of a recognized duty.

## Conclusion

The South Dakota Supreme Court affirmed summary judgment for the homeowners, builder, and plumbing contractor because the plaintiffs did not establish a legally actionable duty and breach under the facts of D.A.’s scald injury, Lyuba’s conduct did not create an assumed duty of supervision, and the asserted code/manual-based theory did not impose a tort duty on the contractors to set or maintain residential hot water at 120°F for the protection of third-party children.


Andrushchenko v. Silchuk, 744 N.W.2d 850 (2008)